Citation Nr: 0815135 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-17 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to an increased evaluation for the left knee disability, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from January 1997 to April 1998. This appeal arises before the Board of Veterans' Appeals (Board) from rating decisions rendered in May 2000 and March 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, in which a 20 percent evaluation was granted for the service connected left knee and in which service connection for PTSD was denied. The veteran testified before the undersigned Veterans Law Judge in November 2006. A transcript of the hearing is associated with the claims file. In May 2007 the Board issued a decision denying service connection for PTSD. The veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). In January 2008, the Court vacated the Board's May 2007 decision and remanded the issues for further development. In May 2000, the RO denied the veteran's claim for service connection of a right knee disability as secondary to the service-connected left knee, and granted a 20 percent evaluation for the service-connected left knee. The veteran submitted a timely notice of disagreement to this rating decision in August 2000. In February 2001, the RO issued a statement of the case identifying both issues. In March 2001, the veteran responded with a VA Form 21-4138, "Statement in Support of Claim" in which he wrote the words: "This is my formal Appeal" at the top. The text of the letter does not address the knee issues, but attached to the letter is VA Form 21-4142, "Authorization and Consent to Release information to the Department of Veterans Affairs" in which the veteran identified treatment for his left knee. In the body of the form, he stated he wished to focus his claim on the areas listed above. Construing the intent of these documents in the light most favorable to the veteran, the Board finds that he perfected his appeal as to the issue of an increased evaluation for his left knee, arising from the claim received in June 1999. The issues are thus as characterized on the front page of this decision. The issue of entitlement to an increased evaluation for the service connected left knee disability addressed in the REMAND portion of the decision below is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran has been diagnosed with PTSD that is the etiological result of his active service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1137, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the veteran. Service connection may be established for disability resulting from injury or disease incurred in service. 38 U.S.C.A. § 1110. Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service connection for PTSD requires the following: 1) medical evidence of a diagnosis of PTSD in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994) (DSM-IV), which is presumed to include both adequacy of the PTSD symptomatology and sufficiency of a claimed in-service stressor; 2) credible supporting evidence that the claimed in-service stressor actually occurred; and 3) medical evidence of a link, or nexus, between the current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f). The veteran's report of medical history and examination at entrance to active service shows no defects, diagnoses, abnormalities or other findings concerning a psychiatric condition. However, service medical records show complaints of and treatment for emotional stress to include stress and anger management during active service. Service medical records document that the veteran began psychiatric counseling while deployed in Korea. A memorandum from the veteran's chaplain shows the veteran reported pain so severe as to render him emotionally disturbed, and stated that he had difficulty concentrating on his job and performing to quality standards as a soldier. The chaplain opined that it was his professional opinion that the service grant the veteran's request for medical discharge. He noted that not to grant the medical discharge would cause more strain on the veteran and the service. A report of psychological consultation conducted pursuant to a Medical Evaluation Board (MEB) reflects a history of relationship problems, difficulty with separation from his family on deployment to Korea, and complaints of harassment and stress resulting from being on profile following a knee injury. The veteran reported beginning to drink more heavily after he began counseling and that following one such incident he passed out and woke up on the floor, soaked. He stated he felt he was set up by the other guys in his unit and had thoughts and fantasies of hurting people in his platoon. He described a lifelong history of anger problems. He reported that he had seen a psychiatrist when he was 13 for anger control problems and that he had a history of hearing voices and having visions when he was angry. He also reported a childhood history of physical abuse by multiple care givers. The psychiatrist diagnosed occupational problems, resolved and partner relational problems, ongoing in AXIS I with personality disorder not otherwise specified with antisocial and schizoid features in AXIS II. The psychiatrist noted that the veteran did not meet induction standards due to past psychiatric history and behavior problems. However, she found him to be mentally competent and not a danger to himself or others, and stated that he met medical retention standards. She opined that his anger control problems could make him a candidate for chapter separation and recommended that he should have a permanent 2 profile and not be assigned anywhere psychiatric care was not available. The MEB report recommended discharge due to severe left knee patellofemoral osteoarthritis of the left knee, and to the diagnosed occupational and partner relational problems and personality disorder, not otherwise specified, with antisocial and schizoid features. The MEB report concluded that the psychiatric diagnoses had their onset during the veteran's childhood, existed prior to service and had not been aggravated by service. The veteran's reports of medical history and examination at discharge shows no complaints, defects, diagnoses, abnormalities or other findings of any psychiatric condition. The Physical Evaluation Board (PEB) ultimately discharged the veteran for his left knee problems only. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3- 2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In VAOGCPREC 3-2003, the VA's General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). It is clear from the service medical records that any psychiatric deficit was first discovered during active service. The veteran's own report of treatment or problems in childhood, absent medical evidence documenting findings of any psychiatric diagnosis, defect, or abnormality prior to active service, does not does not rise to the level of clear and unmistakable evidence required to rebut the presumption of soundness at entry into service. The presumption of soundness is not rebutted. See Wagner, supra VA examination conducted in June 1998 shows the veteran reported emotional or nervous problems while stationed in Korea. He stated he felt he was having a nervous breakdown, was depressed, and experienced mood swings. He stated he believed his symptoms were the result of harassment directed at him because he was on a profile and limited due to joint pains. He reported his platoon sergeant called him a loser, his cane was thrown from him and he experienced general difficulties. The examiner diagnosed a history of adjustment disorder with mixed emotional features in AXIS I and situational factors surrounding physical limitations in AXIS IV. In March 1998, the veteran filed a claim for personality disorder and depression. This claim was denied n December 1998, and the veteran did not appeal. VA treatment records dated in July 1998 show the veteran reported having mood swings with rare rage and no homicidal or suicidal ideation. In June 1999, records show he was diagnosed with possible depression following the loss of a job, a motor vehicle accident, and difficulty finding work which he attributed to his left knee disability. Depressive disorder was diagnosed in August 1999 and attributed to his occupational difficulties and his left knee disability. In August 2000, the veteran reported he was taking prescribed medication for depression. In July 2002, he filed a claim for PTSD. The veteran testified and made statements concerning his averred stressors. In an October 2002 statement, he identified his stressors to include harassment, physical assault and potential sexual assault resulting from his being on profile and limited due to his being on a P-3 profile. He stated he walked with a cane and could not carry his own rucksack. His relationships with his fellow platoon members were additionally strained and, consequently, they did not like him. His platoon sergeant called him a "quitter," and a "poor excuse for a soldier." The veteran stated he went out with a platoon member who had invited him for drinks, and next remembered waking up on the latrine floor. His upper body had been urinated on. He said he knew it wasn't his urine because his underwear were dry. He overheard others talking about giving him a "blanket party." He avoided it by leaving his room that night. Thereafter, he described what he felt was a break down and thoughts of killing his platoon members and himself. He confided in the chaplain. He was afraid to report it to anyone else. But after confiding in his chaplain, he was referred for psychological evaluation and his squad leader was ordered to escort him wherever he went, including to mental and physical treatment appointments. VA treatment records show the veteran reported suspecting he had been sexually assaulted on the night following which he woke covered in urine. He stated his last memory that night involved a woman he didn't know and that he was diagnosed with Chlamydia after the incident. In November 2006, he testified that he was considered a burden by the rest of the platoon because of his profile and that he felt they wanted to make him pay for that. VA treatment records dated in August 2002 show the veteran reported onset of mental health problems during active service with trauma including verbal harassment, a planned but foiled "blanket party," being urinated on, and suspected sexual trauma. The initial diagnosis was of PTSD and major depression. The examiners noted the veteran's childhood history of audiovisual hallucinations, inability to remember all of the events he considered traumatic and the apparent non-specific nature of his stressors. Further testing was recommended. Following clinical tests, the examiners concluded that despite the somewhat non-specific trauma and several discrepant measures, the cumulative clinical information suggested that the veteran met the criteria for military-related PTSD. The final diagnosis was PTSD. The report was signed by a psychology intern and a Ph.D. and clinical psychologist. Service personnel records have not been obtained. The veteran has submitted the statement of a witness, dated in March 2008, who attested that he knew the veteran before and after his period of active service. The witness attested that the veteran confided in him that he was verbally and physically abused while stationed in South Korea, and that he sought counseling for it. The witness stated he knew the veteran to be outgoing and full of life prior to his deployment to South Korea. Upon his return he was depressed and always down about everything. In reviewing the evidence overall, the statements the veteran made to his health care providers-both during active service and post-service-the Chaplain's statement, and the statement of the veteran's witness are most compelling. This evidence presents a consistent rendition of the veteran's experiences in Korea. The record presents no evidence to contradict these events as they have been related by the veteran and his witness. Sexual trauma cannot be substantiated, but in fact the veteran did not state this happened with certainty, only that he suspected it. Notwithstanding, while the record does not specifically corroborate the stressors he reported had occurred, it presents no evidence to refute them. Rather, the record as a whole corroborates his reported history with regard to his averred inservice emotional stress, harassment, abuse, and actual and threatened violence arising from his physical inability to perform his duties after his left knee injury. The veteran is service-connected for a left knee disability. Combined with the opinion of the VA clinical psychologist, which found the veteran to exhibit military-related PTSD, the medical and lay evidence supports the veteran's claim. Accordingly, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND The veteran seeks a higher evaluation for his left knee disability. The most recent VA examination for the left knee of record is dated in 2002, and the most recent VA treatment records concerning the left knee are dated in 2003. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with all appropriate notice and assistance. 2. Ensure that all identified private and VA medical treatment records are obtained. Document negative responses, and inform the veteran so that he may make attempts to procure any missing records on his own. 3. Schedule the veteran for medical examination by an appropriate medical professional to determine the current nature and extent of the service- connected left knee disability. All indicated tests and studies should be performed. The claims folder and a copy of this remand must be provided to the examiner in conjunction with the examination. 4. After undertaking any other development deemed essential in addition to that specified above, readjudicate the veteran's claim for an increased evaluation for the service-connected left knee disability, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the veteran, issue a supplemental statement of the case and afford a responsible period of time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is so informed. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that failure to appear for VA examinations could result in the denial of his claims. 38 C.F.R. § 3.655 (2007). See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Board intimates no opinion as to the ultimate outcome of this case. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs